Webb v. Thomas

Decision Date07 May 1956
Docket NumberNo. 17756,17756
PartiesRobert Lee WEBB, Plaintiff in Error, v. Leonard THOMAS, Defendant in Error.
CourtColorado Supreme Court

Harry F. Claussen, Glenwood Springs, for plaintiff in error.

Coit & Graham, Grand Junction, Stewart & Gallagher, Aspen, for defendant in error.

ALTER, Chief Justice.

Robert Lee Webb brought an action against Leonard Thomas to recover damages in the sum of $288,700 for injuries resulting from an accident incurred while a patron in defendant's swimming pool. The cause was tried to a jury, and at the conclusion of all of the evidence the court directed a verdict in favor of defendant, and judgment thereon was ordered. Plaintiff is here by writ of error seeking a reversal of the judgment.

Plaintiff and defendant will herein be designated as they appeared in the trial court.

In the complaint it is alleged that defendant operated a public swimming pool in Aspen, Colorado, and that on July 5, 1953, plaintiff paid an admission fee for the privilege of swimming therein. It is further alleged that defendant had knowledge that plaintiff was about to dive into the pool at a place where diving was unsafe and dangerous and gave no warning of the fact that the water was not of sufficient depth to permit one to dive safely therein. Further, that the swimming pool was maintained and operated in a negligent and careless manner in that defendant failed to post signs indicating depth of the water in the pool and failed to provide adequate lighting facilities. Plaintiff was seriously and permanently injured as a result of a dive in the shallow portion of the swimming pool, and, as a result of injuries thus received, prays judgment in the sum of $288,700, interest and costs.

Defendant's answer contains five separate defenses, the first consisting of admissions and denials; the second and third raise the question of contributory negligence; the fourth is assumption of risk, and the fifth is the failure of the complaint to state facts to constitute a cause of action.

At the conclusion of plaintiff's evidence in chief, defendant interposed a motion for directed verdict based on the ground that plaintiff had failed to sustain the burden of proving negligence on defendant's part, and, further, that plaintiff's evidence established that he was guilty of contributory negligence, which was the proximate cause of his injuries. This motion was denied. At the conclusion of all of the evidence, defendant renewed his motion, adding thereto that plaintiff's evidence established negligence on his part as the cause of the accident and that the evidence established plaintiff's contributory negligence as a matter of law and plaintiff's assumption of risk. This motion was granted.

The undisputed testimony is that the accident accurred on July 5, 1953, at 10 o'clock P.M. The pool in which it occurred was fifty feet in length, in a northerly-southerly direction, and twenty-five feet in width. In the northerly end the water was three and a half feet deep, and it sloped gradually to the southerly end where the water was eight and a half feet deep. It was rectangular in shape and was painted white. There were no signs around the pool indicating the depth of the water at any particular point. It had two 500 watt lights about two and a half feet below the water level therein which completely illuminated it, and there were two spotlights at each end of the pool. In addition five other lights were in the immediate area. At the time of the accident the water in the pool was clear. The only diving board was at the south end of the pool where the where was eight and a half feet deep.

The pool was constructed in the early part of 1953 on plans and specifications purchased by defendant from the Paddock Pool Company in Los Angeles, California, a large and well known swimming pool company which had built many standard swimming pools. Defendant had gone to Los Angeles for the purpose of acquainting himself with pools constructed by this company in that area. Between the opening of the pool in early 1953 and July 5, 1953, when the accident occurred, approximately 3,500 persons had used it, and prior to the trial, which began on the 20th day of May, 1955, 12,000 to 15,000 persons had used it, and there had been no injuries other than inconsequential scratches or abrasions not attributable to the construction of the pool.

On the evening of July 5, 1953, plaintiff had attended a gathering where dinner and drinks were served, and during the evening, and prior to going to the swimming pool, he testifed that he had two or three martinis. Immediately prior to going to the swimming pool with a companion he had a drink of whiskey from a bottle which he carried in his automobile. At about 10 o'clock P.M. plaintiff having paid his admission fee and changed into his swimming trunks, dove into the north end of the pool. He had never swum in the pool prior to that time. His first dive was made without difficulty, after which he testified that he swam toward the southerly end of the pool and emerged by use of a ladder. He walked around the pool, returning to the north end thereof, and having discovered that his companion was not yet ready to enter the pool, made a 'sailors dive,' struck his head on the bottom at a point where the water was three and a half feet in depth, resulting in his injuries.

Plaintiff was thirty years old at the time of the trial and a patient in the Veterans Hospital at Long Beach, California. It is undisputed that as a result of the injuries received in the swimming pool on July 5, 1953, he is helplessly and permanently disabled for life.

The following quoted portions of plaintiff's testimony disclose the precautions, investigations, and the acts in and about the swimming pool just prior to his injuries:

'Q. What sort of dive did you make the first time you dived into the pool? A. Just a regular flop; the kind of dive I make.

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'Q. You testified that you could not see the bottom of the pool, is that correct? A. Not clearly.

'Q. Did you look for the bottom of the pool? A. I looked into the water.

'Q. Did you look in an attempt to ascertain where the bottom was? A. I know where the bottom was. I looked and it looked all right to me. It didn't impress me a being bad or unbad.

'Q. You said you couldn't see it [the bottom]. What did you mean by that? A. I meant I couldn't see it clearly.

'Q. Did you make any effort to ascertain the depth of the pool at the point where you dived in? A. Other than observing that it looked all right, no.

'Q. Did you make any effort to ascertain where the diving board was? A. No.

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'Q. Do you know now where the diving board at that pool is, or was? A. I am not sure.

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'Q. Did you make any effort prior to the second dive to ascertain the depth of the pool at that point where you made the dive? A. I had made the first dive and had no trouble and came around and assumed there were no dangers involved.

'Q. Did you make any effort before you dived into this pool to ascertain which was the shallow end? A. When I looked at the water and looked at the pool it looked safe to me. I couldn't distinctly see a shallow bottom or anything and I naturally assumed it was safe.

'Q. I asked you whether you made any effort to ascertain which was the shallow end and which was the deep end. Can you answer that question?

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'A. I say it looked deep enough to me, shallow or deep.

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'Q. Then you did not make any effort, is that right? A. No distinct and separate effort to check, no.

'Q. And you dived in without attempting to determine whether you were diving in the shallow end or the deep end, is that right? A. What I am trying to say is I didn't make a definite comparison, whether this was the shallow end or the other was the shallow end. I just dove into the pool. It looked safe and there were no signs or anything to indicate that it wasn't.

'Q. Did you specifically look for any signs? A. I looked around and saw none. I didn't specifically look for a particular sign, no.

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'Q. Did you attempt in any other way to determine whether it was safe to dive at that end of the pool? A. I would say I assumed it was safe from the general appearance and that was my investigation of it.

'Q. I asked you if you made any effort to determine whether it was safe. Can you answer that question?

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'A. Other than the general observations, no. sir.'

Plaintiff's summary of argument may be thus stated: The evidence established: 1. That the accident and injuries were caused by the negligent actions and omissions of the defendant. 2. Error was committed by the court in granting defendant's motion for a directed verdict at the conclusion of all of the evidence after having denied said motion at the conclusion of the plaintiff's evidence....

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  • Vigil v. Franklin
    • United States
    • Colorado Supreme Court
    • November 30, 2004
    ...and occupiers of land ... are not insurers against every foreseeable accident which might occur.") (citing Webb v. Thomas, 133 Colo. 458, 463-64, 296 P.2d 1036, 1038-39 (1956); Burchinal, 41 Colo.App. at 491-92, 586 P.2d at B. Premises Liability Since the alleged tort occurred on the Frankl......
  • Hanson v. Christensen
    • United States
    • Minnesota Supreme Court
    • October 28, 1966
    ...of contributory negligence. Both questions were for the jury. The defendant in the instant case relies to some extent on Webb v. Thomas, 133 Colo. 458, 296 P.2d 1036, where the plaintiff dove into shallow water in a swimming pool, receiving injuries. In that case a directed verdict for defe......
  • Vigil v. Franklin
    • United States
    • Colorado Court of Appeals
    • May 22, 2003
    ...dangers. See Smith v. City & County of Denver, 726 P.2d 1125, 1127-28 (Colo.1986)(general negligence scheme); Webb v. Thomas, 133 Colo. 458, 464, 296 P.2d 1036, 1039 (1956)(common law premises liability scheme). The rationale was that "[w]here the potential for danger is readily apparent, a......
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    • United States
    • U.S. District Court — District of Colorado
    • June 30, 1962
    ...premises must be kept in a "suitable condition for the purpose for which they are ordinarily used in a customary way." Webb v. Thomas, 133 Colo. 458, 296 P.2d 1036 (1956). And in Lakeside Park Co. v. Wein, 111 Colo. 322, 141 P.2d 171 (1943), a case wherein a patron of the defendant amusemen......
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1 books & journal articles
  • Legal Aspects of Health and Fitness Clubs: a Healthy and Dangerous Industry
    • United States
    • Colorado Bar Association Colorado Lawyer No. 15-10, October 1986
    • Invalid date
    ...end dive); Smith v. Stark, 67 N.Y.2d, 490 N.E.2d 841, 499 N.Y.S.2d 922 (1986) (plaintiff thrown into shallow end); Webb v. Thomas, 133 Colo. 458, 296 P.2d 1036 (1956)(shallow end dive); Corbin v. Coleco Industries, Inc., 748 F.2d 411 (7th Cir. 1984)(shallow end dive). 34. Corbin, supra, not......

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